DBSI Judge Confronts FBI Agent’s Tragic Death During Trial

The apparent suicide of a Federal Bureau of Investigation agent testifying in the criminal trial of the president of a failed Idaho real-estate firm has created a difficult situation for the judge overseeing the case.

Following the death ofFBI Special Agent Rebekah Morse, U.S. District Court Judge B. Lynn Winmill had to figure out how to instruct the jury that’s now deliberating whether to convict Douglas Swenson and others of fraud and conspiracy charges related to the now-bankrupt DBSI Inc.

Ms. Morse, the lead FBI investigator in the case, testified for the prosecution on March 18 and 19, court papers show. The second day, a juror told the court that while the judge was conferring with attorneys in the case, the juror had spotted Ms. Morse texting on the witness stand.

Judge Winmill said the juror’s comment couldn’t be ignored because it raised a “troubling possibility”—that jurors who had seen Ms. Morse texting on the stand might believe she was being coached during her testimony.

The judge wrote that he asked Ms. Morse about the texting, under oath and without the jury present. He said she responded that she was merely going to turn off her phone “to ensure that it didn’t distract me or make any noise.” She also specifically denied texting anyone. With that, Judge Winmill said he brought the jury back to the courtroom and informed them that he was “satisfied” that she wasn’t using her phone to communicate with anyone but had simply turned off the phone.

But the judge says further reflection led him to wonder whether the juror had spotted Ms. Morse on her phone multiple times. He raised the issue with Ms. Morse, took possession of her cell phone and directed her to return for testimony the following day, March 20. But that morning, Ms. Morse, whose phone records showed she had texted her husband while on the witness stand, was found dead of a self-inflicted gunshot wound. She was 34.

“Her death was devastating,” Judge Winmill wrote.

”A storm of emotion broke over all involved in this trial and drove the proceedings into uncharted waters. Her answers to the Court’s inquiry will now never be explained. The jury has been instructed that what they saw with their own eyes—texting—did not occur, when in fact it did occur. The Court must correct that inaccurate instruction. The Court must also determine how far it will go in recognizing the defendants’ rights under the Confrontation Clause to impeach a key Government witness while at the same time avoiding the morass of a mini-trial over text messages.”

Judge Winmill’s ultimate conclusion, the subject of this April 8 court order, is to issue a new instruction to the jury:

“The Court inquired of Special Agent Morse under oath about texting during a sidebar, and she stated that she was turning off her phone and was not texting. It has now been determined that Special Agent Morse sent four text messages and received four text messages during a sidebar. The text messages were between her and her husband. You may consider these facts in assessing Special Agent Morse’s credibility.”

According to court papers, Ms. Morse in the texts complained about being “[s]till on the stand” and how her testimony is “never going to end.” Her husband texted her, “How is it going?” to which the filing says she responded: “I fu—- up once I will get reemed for it I’m sure.”

Defense attorneys wanted the jury to read the content of Ms. Morse’s texts, arguing that it appears she was questioning her testimony. But Judge Winmill has declined to do so, reasoning that it wouldn’t be fair to present such information without knowing for sure what the texts meant.

“Any attempt by the defendants to infer some meaning would be utter speculation. Allowing that would be profoundly unfair to the Government because it has no way to explain what Special Agent Morse meant,” the judge wrote.

The jury instructions issued, deliberations are underway in the long-running criminal trial. Mr. Swenson and others were indicted last year on charges that they “essentially operated” DBSI like a Ponzi scheme, using new investor money to pay old investors. Mr. Swenson and others allegedly held DBSI out to be a profitable company when it fact it was “universally unprofitable.”

Mr. Swenson and the other defendants have pleaded not guilty to the charges. Their attorneys have argued at trial that the company was a victim of the economic downturn.

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